Citation Nr: 0618617
Decision Date: 06/23/06 Archive Date: 06/30/06
DOCKET NO. 03-35 885 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Whether new and material evidence has been received to
reopen a claim for service connection for a low back disorder
and, if so, whether service connection for a low back
disorder is warranted.
2. Entitlement to service connection for a depressive
disorder.
REPRESENTATION
Appellant represented by: Missouri Veterans Commission
ATTORNEY FOR THE BOARD
Michael Holincheck, Counsel
INTRODUCTION
The veteran served on active duty from February 1973 to May
1976.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a December 2002 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri.
The issue of entitlement to service connection for depressive
disorder is addressed in the REMAND portion of the decision
below and is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The veteran was denied service connection for a low back
disorder by way of a rating decision dated in August 1993.
The veteran was notified of the denial, but he did not
appeal.
2. The evidence received since the August 1993 rating
decision is new and material and raises a reasonable
possibility of substantiating the underlying claim for
service connection for a low back disorder.
3. The veteran does not have a low back disorder that is
related to his military service.
CONCLUSIONS OF LAW
1. New and material evidence sufficient to reopen a
previously denied claim of service connection for a low back
disorder has been received. 38 U.S.C.A. §§ 1110, 1131, 5108,
7105 (West 2002); 38 C.F.R. § 3.156(a) (2005).
2. The veteran does not have a low back disorder that is the
result of disease or injury incurred in or aggravated during
service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38
C.F.R. §§ 3.303, 3.304, 3.306, 3.307 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
New and Material Evidence
The veteran served on active duty from February 1973 to May
1976. The veteran claims that his current low disorder is
related to treatment received for complaints of back pain in
service.
The law provides that service connection may be granted for
disability resulting from disease or injury incurred in or
aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West
2002); 38 C.F.R. §§ 3.303, 3.304 (2005). In addition,
certain chronic diseases, including arthritis, may be
presumed to have been incurred during service if the disorder
becomes manifest to a compensable degree within one year of
separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113
(West 2002); 38 C.F.R. §§ 3.307, 3.309 (2005).
In the alternative, the chronicity provisions of 38 C.F.R. §
3.303(b) are applicable where evidence, regardless of its
date, shows that a veteran had a chronic condition in
service, or during an applicable presumptive period, and
still has such condition. Such evidence must be medical
unless it relates to a condition as to which under case law
of the United States Court of Appeals for Veterans Claims
(Court) lay observation is competent.
If chronicity is not shown, service connection may still be
established on the basis of 38 C.F.R. §3.303(b) if the
condition is noted during service or during an applicable
presumptive period, and if competent evidence, either medical
or lay, depending on the circumstances, relates the present
condition to pertinent symptomatology experienced since
service. Savage v. Gober, 10 Vet. App. 488 (1997).
Generally, service connection requires (1) medical evidence
of a current disability, (2) medical evidence, or in certain
circumstances lay testimony, of in-service incurrence or
aggravation of an injury or disease, and (3) medical evidence
of a nexus between the current disability and the in-service
disease or injury. Pond v. West, 12 Vet. App. 341, 346
(1999); accord Caluza v. Brown, 7 Vet. App. 498 (1995).
The veteran originally submitted a claim for entitlement to
service connection for a low back disorder in June 1993. His
claim was denied by the RO in August 1993, with notice
provided that same month. The veteran failed to appeal and
the decision became final. See 38 C.F.R. §§ 20.302, 20.1103
(2005). As a result, service connection for a low back
disorder may now be considered on the merits only if new and
material evidence has been received since the time of the
prior adjudication. 38 U.S.C.A. § 5108 (West 2002);
38 C.F.R. § 3.156(a) (2005); Manio v. Derwinski, 1 Vet.
App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996).
The Board must consider the question of whether new and
material evidence has been received because it goes to the
Board's jurisdiction to reach the underlying claim and
adjudicate the claim de novo. See Jackson v. Principi, 265
F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d
1380 (Fed. Cir. 1996). If the Board finds that no such
evidence has been offered, that is where the analysis must
end, and what the RO may have determined in that regard is
irrelevant. Id. Further analysis, beyond consideration of
whether the evidence received is new and material, is neither
required nor permitted. Id. at 1384. See also Butler v.
Brown, 9 Vet. App. 167, 171 (1996).
Under 38 C.F.R. § 3.156(a), evidence is considered "new" if
it was not of record at the time of the last final
disallowance of the claim. Material evidence means existing
evidence that, by itself or when considered with previous
evidence of record, relates to an unestablished fact
necessary to substantiate the claim. Finally, new and
material evidence can be neither cumulative nor redundant of
the evidence of record at the time of the last prior final
denial of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim.
In determining whether evidence is new and material, the
"credibility of the evidence is to be presumed." Justus v.
Principi, 3 Vet. App. 510, 513 (1992).
The evidence of record at the time of the August 1993
decision consisted of the veteran's service medical records
(SMRs). The SMRs show that the veteran was treated for
complaints of low back pain on several occasions in 1973,
twice in 1974, and once in 1975. The back pain was of
gradual onset, with no evidence of trauma, except in
September 1974 when the veteran rolled into a telephone pole
while playing football. The veteran's December 1975
separation physical examination did not show any abnormality
involving the lower back. The examiner noted that the
veteran's history of treatment for what was termed recurrent
back pain.
On his claim for benefits, the veteran listed having had
surgery for back injuries in 1990 and 1992. Several requests
for the related private treatment records were made; however,
no records were received.
The veteran's claim for service connection was denied in
August 1993. The RO determined that the veteran's back pain
resolved with treatment in service and that the separation
physical examination found no evidence of residuals.
Although the rating decision did not state it, there was no
objective evidence of a current disorder as of August 1993.
The only medical evidence considered was the SMRs and they
did not demonstrate a current disorder.
The veteran submitted his request to reopen his claim for
service connection in September 2002. The evidence added to
the record since the August 1993 rating decision includes
additional SMRs, private medical records for the period from
January 1989 to July 2002, VA treatment records for the
period from July 1999 to July 2002, VA examination reports
dated in November 2002, and statements from the veteran.
All of the evidence is new to the record. The additional
SMRs are unrelated to the veteran's low back disorder. They
are not material to the issue of service connection.
The private treatment records relate to treatment provided to
the veteran for multiple back injuries that he either
suffered at his place of employment or in motor vehicle
accidents (MVA) beginning in January 1989. The records
document of a number of diagnoses relating to the low back.
They clearly establish the fact of a current disability.
The VA treatment records also demonstrate that the veteran
has received treatment for a low back disorder.
The November 2002 VA orthopedic examination provided a
diagnosis of a current back disorder.
The Board finds that the evidence discussed supra to be
material. The Board further finds that this new and material
evidence relates to a previously unestablished fact necessary
to establish a claim - the presence of a current disability.
The evidence also raises a reasonable possibility of
substantiating the claim in that the veteran has a current
disability that requires evaluation in light of his treatment
in service. Accordingly, the veteran's claim for service
connection for a low back disorder is reopened.
Reopened Claim
The SMRs show that the veteran was initially seen for
complaints of low back pain in August 1973. He was seen for
follow-up on two other occasions. He was seen again in March
1974 for vomiting, back pain, and sore throat. The back pain
was not related to an orthopedic complaint. He was seen in
again in September 1974 when he complained of back pain after
rolling into a telephone pole while playing football. There
was no follow-up treatment. Finally, the veteran was seen
for back pain of one day duration in mid-December 1975.
There was no history of trauma.
The veteran's September 1975 physical examination did not
report any abnormality of the back or an ongoing case of back
pain. The examiner did note a history of treatment of back
pain and referred to it as recurrent as part of the veteran's
overall medical history.
The veteran did not submit a claim for any lower back
disability until 1993. At that time he reported having had
two surgeries. The veteran submitted limited records from
several of his private physicians that documented his having
injured his back in 1989 and again in 1991, requiring surgery
for his injuries. The records did not report any history of
back problems during service. The records did not detail any
long history of back problems and related the veteran's
surgeries to injuries beginning in 1989.
The veteran was afforded a VA orthopedic examination in
November 2002. The examiner noted the veteran's treatment
for complaints of back pain in service. The examiner also
reviewed the private treatment records that documented the
veteran's back injuries and subsequent surgeries long after
service. The examiner provide a diagnosis of history of
surgery of the lumbosacral spine, with surgery times two,
with development of degenerative joint disease (DJD). The
examiner also reviewed the history of back pain in service
and the private record documentation of distinct post-service
back injuries. The examiner said that the complaints in
service did not appear to be herniated discs and that the
veteran would have had more back problems before 1990 if they
had been herniated discs. The examiner said that it was not
likely that the acute episodes in service are what caused the
veteran's current severe problems.
The veteran case was remanded for additional development in
March 2005. Records from the Social Security Administration
(SSA) were obtained and associated with the claims file. The
records comprise four volumes and contain extensive private
treatment records from 1989 to 2002 and VA treatment records
for the period from July 1999 to July 2002. The private
treatment records are from a number of the veteran's
physicians and include records in addition to those he had
provided earlier. The records also contain occupational
assessments from a physician hired by the veteran to assist
him with his SSA disability claim.
The private records show that the veteran first injured his
back at work in December 1988. The injury occurred while he
was lifting a heavy object. The veteran suffered a herniated
nucleus pulposus. The records document his subsequent
surgery. A number of other, later injuries are documented in
the records. The private treatment records contain no
reference to the veteran having had back pain in service.
There is no medical record that relates any symptom of the
veteran's multiple low back diagnoses to his military
service. In fact, the records all point to the veteran's
back problems as being related to his service injuries that
have occurred since 1988.
In regard to the occupational assessments of record, they do
not support the veteran's claim. These assessments provided
a very detailed review of the veteran's past medical history.
The veteran's other medical complaints and surgeries were
noted in detail. There was no mention of any back pain in
service or in the intervening years. Moreover, they do not
relate the veteran's back complaints, from 1989 to 2002, to
his military service.
The veteran has argued that he believes that the back
injuries he had in service are directly related to his
current problems. However, he has provided no evidence that
supports his contentions. There is no evidence of back
problems after service and before his injury in 1988. The
large volume of post-service medical record evidence is all
against his claim in that it shows the current back problems
are related to post-service incidents and/or accidents.
The veteran is capable of presenting lay evidence regarding
the symptoms of his claimed back disorder. However, where,
as here, a medical opinion is required to diagnose the
condition and to provide a nexus to service, only a qualified
individual can provide that evidence. As a layperson, the
veteran is not qualified to offer medical opinions. See
Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In the
absence of competent evidence that establishes a nexus
between any currently diagnosed low back disorder, and the
veteran's military service, his claim must be denied.
The Board has considered the doctrine of reasonable doubt,
but finds that the record does not provide an approximate
balance of negative and positive evidence on the merits. The
Board is unable to identify a reasonable basis for granting
service connection for a low back disorder. Gilbert v.
Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A.
§ 5107(b); 38 C.F.R. § 3.102.
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2005).
Proper notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in her or his possession
that pertains to the claim in accordance with 38 C.F.R.
§ 3.159(b)(1) (2005).
The veteran's request to reopen his claim for service
connection for a low back disorder was submitted in September
2002. Review of the record indicates that VA has fulfilled
its duty to notify this veteran of the types of evidence
necessary to substantiate his claim for benefits. The RO
wrote to the veteran in October 2002. He was informed that
his claim was previously denied in August 1993. The veteran
was advised that he needed to submit new and material
evidence to reopen his claim. The letter provided a
description of what constituted new and material evidence.
The veteran was further advised of the evidence necessary to
substantiate his claim for service connection. He was
informed of VA's responsibilities in the development of his
claim, what he should do to help, and to submit evidence to
VA.
The veteran's claim was denied in December 2002.
The veteran's case was remanded by the Board in May 2005.
The RO wrote to the veteran in July 2005. The veteran was
again informed of what evidence was required to establish
service connection. He was asked to identify sources of
treatment so that records could be obtained. The RO also
informed the veteran of VA's responsibilities in the
development of his claim and what he was required to do. The
veteran was asked to submit any evidence in his possession to
the RO. The veteran was also informed of the evidence of
record.
Additional evidence was developed. The veteran's claim
remained denied. He was issued a supplemental statement of
the case (SSOC) that explained the basis for the continued
denial in February 2006.
The veteran has not alleged any prejudice in the development
of his claim. He has effectively participated in the
development of his claim.
The Board also finds that VA has adequately fulfilled its
obligation to assist the veteran in obtaining the evidence
necessary to substantiate his claim. Additional SMRs were
obtained and associated with the claims file. Records from
SSA, which contained private and VA treatment records, were
obtained. The veteran was afforded an examination. The
veteran has not alleged that there is any outstanding
evidence pertinent to his claim.
ORDER
Service connection for a low back disorder is denied.
REMAND
The veteran is also claiming entitlement to service
connection for depressive disorder. The veteran reported
receiving treatment for his depression from VA. He said he
was seen at the outpatient clinic in Cape Girardeau,
Missouri, at the time he submitted his claim in September
2002. He identified the name of the VA physician and said he
was diagnosed with depression. The veteran also noted he had
been diagnosed with depression in service.
The RO did not attempt to obtain the treatment records
referenced by the veteran.
The SMRs that were of record prior to the May 2005 remand
showed that the veteran was seen in the mental health clinic
at his new unit in November 1975. The first entry noted that
the veteran had been at his unit for four days. He was
reported to have trouble sleeping and eating, and felt
nervous and depressed. There were other entries that showed
that the veteran was evaluated further but no definitive
outcome or diagnosis was listed.
The veteran was afforded a VA psychiatric examination in
November 2002. The veteran reported that he sought
assistance from VA beginning three years earlier. He later
said that he had only received marital counseling. The
examiner noted that the veteran reported having problems with
sleeping and eating in service, and apparently had been
administered psychological tests and appeared to have been
suffering from a character behavior disorder in service. The
examiner provided a diagnosis of depressive disorder, not
otherwise specified (NOS). The examiner provided additional
comments about the veteran's current situation. However, the
examiner did not provide an opinion as to whether the current
diagnosis of depressive disorder was related to the veteran's
military service.
As noted supra, VA treatment records were included with the
SSA records obtained. The VA records contain one entry of
the veteran being seen in the mental health clinic in May
2002. The veteran was diagnosed with an anxiety disorder.
There was no mention of the veteran's military service as
being related to the diagnosis.
On remand, the RO obtained additional mental health records
from when the veteran was evaluated during service in 1975.
The records were obtained in January 2006. The records show
that the veteran was evaluated for continued suitability for
service. He was diagnosed with a passive-dependent
personality with inadequate features. The veteran was
recommended for separation from service.
The VA examiner failed to provide an opinion as to whether
any currently diagnosed psychiatric disorder was related to
service. Further, the examiner did not have the benefit of
the additional in-service mental health records in reviewing
the veteran's status. Therefore, a new examination is
required to allow for a full review of the military medical
evidence and to obtain a nexus opinion.
Accordingly, the case is REMANDED for the following action:
1. The RO should request that the
veteran identify the names, addresses,
and approximate dates of treatment for
all VA and non-VA health care providers
who have treated him for psychiatric
symptoms/disorders since service. The RO
should attempt to obtain copies of
pertinent treatment records identified by
the veteran that have not been previously
secured.
2. The veteran should be afforded a
psychiatric examination. The claims file
should be reviewed by the examiner as
part of the overall examination. All
indicated studies, tests and evaluations,
if any, should be performed as deemed
necessary by the examiner. For any
psychiatric diagnosis the examiner should
provide an opinion as to whether there is
a 50 percent probability or greater that
the disability began during the veteran's
active military service. The report of
examination should include the complete
rationale for all opinions expressed.
3. After undertaking any other
development deemed appropriate, the RO
should re-adjudicate the issue on appeal.
If any of the benefits sought are not
granted, the veteran and his
representative should be furnished with a
supplemental statement of the case and
afforded an opportunity to respond.
Thereafter, the case should be returned to the Board for
further appellate review. By this remand, the Board
intimates no opinion as to any final outcome warranted. No
action is required of the veteran until he is notified by the
RO. The veteran has the right to submit additional evidence
and argument on the matter the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
______________________________________________
Gary L. Gick
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs